PEOPLE v. LATTIMORE (2009)

Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered July 16, 2007, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree (three counts) and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to an aggregate term of 5 years, unanimously modified, on the law, to the extent of remanding for a new sentencing proceeding, and otherwise affirmed.

 Defendant was properly represented by counsel throughout the trial, and the record, which defendant has not sought to expand by way of a CPL 440.10 motion, does not support his claim that he took over counsel's normal decision-making role (see People v. Ferguson, 67 N.Y.2d 383, 390, 502 N.Y.S.2d 972, 494 N.E.2d 77 [1986] ) to such a degree that he was effectively proceeding pro se without the necessary colloquy about the risks of self-representation.   To the extent the record permits review, it establishes that any decision-making by defendant “did not constitute self-representation requiring the court to warn him of the risks of proceeding pro se” (People v. Blak, 6 A.D.3d 301, 302, 774 N.Y.S.2d 711 [2004], lv. denied 3 N.Y.3d 637, 782 N.Y.S.2d 408, 816 N.E.2d 198 [2004];  see also People v. Cabassa, 79 N.Y.2d 722, 730-731, 586 N.Y.S.2d 234, 598 N.E.2d 1 [1992], cert. denied sub. nom. Lind v. New York, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 563 [1992] ).

Defendant's claim that the court improperly modified its original Sandoval ruling after defendant's direct testimony, and his related claims regarding the prosecutor's summation, are unpreserved and we decline to review them in the interest of justice.   As an alternative holding, we find that defendant opened the door to the modified ruling (see People v. Fardan, 82 N.Y.2d 638, 646, 607 N.Y.S.2d 220, 628 N.E.2d 41 [1993] ), and that the summation comments at issue were fair comment on the evidence (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ).   We also reject defendant's ineffective assistance of counsel claim relating to these issues (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

 As the People concede, defendant is entitled to a new sentencing proceeding because he was deprived of his right to counsel at sentencing.